Hosea v. City of Seattle

Finley, J.

This is a lawsuit against the city of Seattle by Robert Hosea, his wife, and their three children (plaintiff s-respondents) to recover compensation for personal injuries and property damage sustained in an automobile collision. The collision occurred on August 23, 1958, when John Ussery drove an automobile negligently across the center line of a highway and into the path of the oncoming Hosea family vehicle. At the time, John Ussery was technically a prisoner or jail inmate in the legal custody and subject to the legal control of the city of Seattle.

Ussery had been transferred from the city jail and assigned as a trusty to the Wallingford precinct police station. He was absent from the precinct police station without express permission when the accident occurred, and was driving an automobile, privately owned by a third party. He was not, however, an escapee. His absence from the precinct police station and his driving of the automobile occurred or arose, apparently, as concomitants of certain practices and circumstances involving the assignment, use or employment of trusties at neighborhood police stations in the city of Seattle.

The record indicates that for many years the city of Seattle has kept two inmates from the city jail assigned to the Wallingford precinct police station as trusties for the pur*680pose of servicing official police motor vehicles. The prisoners so assigned are normally those with short sentences involving minor offenses. As trusties at the Wallingford precinct station, the prisonérs are not confined or kept under direct surveillance. They are quartered on the second floor of the station house, eat their meals at public expense in a privately-owned restaurant across the street, and, generally, are accorded free run in and about the station premises when not on duty.

In addition to working on police motor vehicles, the trusties, as part and parcel of the “trusty” program, are permitted to earn small sums of money by washing privately owned vehicles, using the police station facilities. Further, they are allowed to perform odd jobs for the businessmen in the area, and also to perform other jobs which might take them away from the station on their own recognizance. While the facts are somewhat in dispute, the record strongly indicates that the prisoners could and did leave the station on personal matters, more or less at will, without the permission or knowledge of the police officials in charge, usually subject to no more than a minor rebuke upon return. There also is some indication that alcoholic beverages were consumed by the prisoners on several occasions, both on the precinct premises and in local taverns, and apparently without any serious official concern upon discovery.

On the afternoon of the day of the accident, the prisoner Ussery, who had but 3 days to serve on his sentence for drunken driving, left the precinct station for more engaging company and surroundings, thereupon, apparently, indulging some propensity for intoxicants. Subsequently, he obtained (under disputed circumstances) an automobile owned by the daughter of the owner of the restaurant where the Wallingford precinct trusties were fed. Ussery drove the automobile toward Bothell, purportedly to secure replacement parts to repair a defective tail or blinker light on the vehicle. The combination of circumstances proved very unfortunate for plaintiff Hosea and his family, as indicated above.

*681The plaintiffs alleged and sought to establish liability on the part of the city of Seattle. The case was tried to a jury, which returned a verdict for the plaintiffs and awarded substantial damages. The defendant city moved successfully for judgment notwithstanding the verdict, and the trial judge dismissed the action against the city with prejudice.

The grounds for the dismissal as stated by the court were: (1) That the confinement of prisoners and their employment to service police cars constituted a governmental function, and the city is protected from liability under the doctrine of governmental immunity from tort claims; and (2) that Ussery’s negligence, driving under the influence of intoxicants, some miles distant from his place of detention, was not a reasonably foreseeable consequence of negligent failure to supervise and control the prisoner, and was not attributable to negligence in permitting him to leave the police precinct station.

We think that neither of the stated grounds is sufficient to set aside the conclusions reached by the jury. As to the question of governmental immunity, the first ground for dismissal mentioned above, it should be noted that the trial judge was required to rule on this matter prior to the decision in Kelso v. Tacoma (1964), 63 Wn. (2d) 913, 390 P. (2d) 2. Thus, his ruling was without knowledge of our recent abrogation of the doctrine of governmental immunity as an absolute or general bar against liability for harmful tortious conduct by a municipality.

However, even without this significant development in the tort law of Washington, the result should have been the same in the instant case. Diaphanous, but telling, distinctions were made before Kelso v. Tacoma, supra, as to whether certain municipal activities should be categorized as proprietary or governmental. Depending upon the characterization, tort liability did or did not attach. In such a context, it can be said that usually the care, custody and control of prisoners, i.e., criminal offenders, are considered as clearly governmental in nature. The quid pro quo, profit or benefit is substantially a social one. In other words, the *682custodial function is for the social advantage and protection of society rather than a pecuniary or financial benefit in dollars and cents to the public exchequer. In the instant case, clearly there were some very desirable societal advantages inherent in the program for trusties as formulated and operated by the Seattle Police Department at the Wal-lingford precinct station. But this was not all. City prisoners were not legally or otherwise obligated, and they did not have to wash and do repair and maintenance work as to police vehicles. In their doing so, the operations involved a financial return to the city treasury to the extent that the program eliminated the expense otherwise necessary to have the vehicles serviced, e.g., privately, in gasoline stations or garages. In this sense we believe the trusty program was strongly proprietary in nature, negating a characterization of the program or operation as clearly governmental and entitling the city to immunity from tort liability. We find no merit in the trial court’s first ground for dismissal.

We come now to a discussion of the trial court’s second ground for dismissing the lawsuit with prejudice, namely, that Ussery’s conduct-negligence (driving under the influence of intoxicants, crossing the white center line and colliding with plaintiffs’ automobile) was not foreseeable in a legal sense, in terms of negligence and proximate causation on the part of the city of Seattle. Foreseeability, as a legal concept, is closely related to, overlaps, or may even be said to be a significant facet or element of both negligence and proximate cause, and should perhaps be considered in this context rather than being overemphasized by treatment as a separate and distinct legal or factual matter.

It is well established that the intervening acts of third persons, legally accountable or not in their individual capacities, do not necessarily break a chain of proximate causation which sets the limits or prescribes the standard for determining legal responsibility and/or liability. Berg-lund v. Spokane Cy. (1940), 4 Wn. (2d) 309, 103 P. (2d) 355. While foreseeability has been treated as a major *683element in this determination, it is not the sole consideration in attempting to set the limits of legal responsibility-in terms of cause in fact.

The principle of proximate causation is not self-defining and absolute in meaning; nor is it self-executing in relation to a lawsuit. In the hands of a jury or an appellate court the concept does help to organize thinking and to direct intellectual evaluation and decision making. The jury and the appellate court still must weigh and weight factors, values, facts and circumstances presented in a given case. If the record, evidentiary pattern, can be said to reasonably support the jury’s determination, this should end the matter in terms of the review function of the appellate court. We are not to substitute our choice of values and judgment for that of the jury. McLeod v. Grant Cy. School Dist. (1953), 42 Wn. (2d) 316, 255 P. (2d) 360.

A review of the facts in the instant case indicates that reasonable men could differ on the question of proximate causation. The record clearly shows that the trusty program has been an established one for many years, that it is of benefit both to the city and to the individual prisoner, and that the washing of police cars and performing of private outside jobs (obtaining small stipends for the prisoner) inevitably entails some lessening of restraint upon the prisoners so engaged. The element of foreseeability in proximate cause is clearly satisfied by testimony from which the jury could have found that the city knew, or should have known, that private cars were being driven on and off the premises by the prisoners. Furthermore, it appears that the city reduced its restrictions upon a person with a known propensity for attempting a dangerous mixture of automobiles and alcohol. The indulgence of such a proclivity was encouraged, in fact made probable, by the maimer in which the trusty program was allowed to operate by the city. We are unable to hold as a matter of law that the evidence was insufficient to submit the question of proximate cause, including its element of foreseeability, to the jury for its determination.

*684The action of the trial court should be reversed, the verdict of the jury reinstated, and judgment entered for the plaintiffs accordingly against the city of Seattle. It is so ordered.

Rosellini, Hunter, Hamilton, and Hale, JJ., and Dawson, J. Pro Tern., concur.